The central legal point established in the judgment is the requirement to fulfill twin conditions before exercising the enabling power to remand a case back to the trial court, as provided under Order XLI Rule 23A of the Code of Civil Procedure, 1908.

JUDGMENT :

Anil Kshetarpal, J.

1. The defendant no.1 assails the correctness of the order passed by the First Appellate Court on 31.10.2018, by which the judgment and decree passed by the trial court has been set aside and the First Appellate Court has remitted the case back to the trial court on the following two grounds:-

(1) No opportunity has been awarded to the plaintiff to lead rebuttal evidence on issue no.2.

(2) The application for additional evidence filed by the defendants has not been decided.

2. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paper book.

3. The plaintiff filed a suit for grant of decree of declaration with a consequential relief of joint possession claiming that he is the owner in possession of 3 kanals and 7 marlas of land out of the land measuring 11 kanals and 14 marlas.

4. The suit was contested by the defendants and dismissed by the trial court by a detailed judgment. However, as noticed, the First Appellate Court remitted the matter back to the trial court for fresh decision.

5. The learned counsel representing the appellant (defendant no.1) submits that on both the counts, the First Appellate Court has committed factual error. He submits that the plaintiff has been granted 29 opportunities to lead rebuttal evidence and the application for additional evidence was dismissed by the trial court on 28.02.2011 while dismissing the plaintiff's suit.

6. The learned counsel representing the respondents submits that after recasting of the issues, sufficient opportunity was not granted to the plaintiff. However, he does not dispute that the application for additional evidence filed by the defendant stood decided by the trial court.

7. As per Order XLI Rule 23 and 23A of the Code of Civil Procedure, 1908, the appellate court has enabling power to remand the case back to the lower court for fresh decision. After discussing the scope of such enabling power, the Supreme Court in P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686, has laid down as under:-

“10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary exdebito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court